In the Matter of the Termination of Parental Rights of: I.M. (Minor Child) and B.S. (Mother) v. The Indiana Department of Child Services (DCS) (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 20 2019, 9:30 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jessica L. Hoover Curtis T. Hill, Jr.
Law Office of Jessica L. Hoover, LLC Attorney General of Indiana
Remington, Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 20, 2019
of Parental Rights of: Court of Appeals Case No.
18A-JT-1878
I.M. (Minor Child)
Appeal from the Jasper Circuit
and Court
B.S. (Mother), The Honorable John D. Potter,
Appellant-Respondent, Judge
Trial Court Cause No.
v. 37C01-1805-JT-104
The Indiana Department of
Child Services (DCS),
Appellee-Petitioner.
Robb, Judge.
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Case Summary and Issue
[1] B.S. (“Mother”) appeals the juvenile court’s termination of her parental rights
to I.M. (“Child”), raising the sole issue of whether the trial court erred in
terminating her parental rights. Concluding the juvenile court did not err, we
affirm.
Facts and Procedural History
[2] Child was born to Mother and F.M. (“Father”) on December 9, 2016.1 On
August 23, 2017, the Indiana Department of Child Services (“DCS”) received a
report that Mother was homeless, Child’s sibling A.M.2 had not been enrolled
in school, and Mother did not have proper food for then nine-month-old Child.
DCS received a second report on September 1 alleging that Mother physically
abused sibling A.M., slept excessively, suffered from depression, left Child and
sibling A.M. unattended, and when the Children were left in the care of
maternal grandmother, grandmother was neglectful and engaged in drug use.
Mother tested positive for THC on September 6.
1
Father’s parental rights were also terminated. Father, however, does not participate in this appeal and we
therefore limit our recitation of facts to those relevant to Mother.
2
A.M., who was born May 5, 2010, was named in the underlying CHINS case but not alleged to be a
CHINS. See Appellant’s Appendix, Volume II at 7. She was eight years old at the time of the termination
hearing and is reportedly autistic. However, A.M. is not mentioned in the termination decree provided for
this appeal, nor by Mother in her brief, except to refer to her as “minor child’s sibling[.]” Brief of Appellant
at 7.
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[3] An informal adjustment was opened on September 21 wherein Mother agreed
to work with DCS to complete services so as to “alleviate the reasons for
involvement.” Transcript at 45. Mother was arrested on October 9 following a
traffic stop where she was found in possession of drug paraphernalia. While
incarcerated, Mother informed DCS that Child was with Father but Child was
eventually located with her aunt. The Children were removed on October 10
and DCS filed a child in need of services (“CHINS”) petition on October 11,
alleging:
a. That the family entered into an Informal Adjustment with the
DCS on or about September 21, 2017, and since that date
[M]other tested positive for marijuana.
b. That on or about October 10, 2017, Family Case Manager
Holly Ammann (“FCM Ammann”) learned that [M]other was
incarcerated at the Newton County Jail. FCM Ammann went
and spoke with [M]other at the Newton County Jail and
[M]other informed her that she was pulled over for speeding and
that she was arrested for possession of paraphernalia along with
her mother and uncle.
c. That when FCM Ammann asked [M]other where the [C]hild
was [M]other was dishonest stating that the [C]hild was being
watched by her [F]ather, DCS was eventually able to locate the
[C]hild with [M]other’s aunt.
d. That the [C]hild’s sibling [A.M.] has had five unexcused
absences from school along with her being tardy eight times since
school started on August 28, 2017.
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e. That several attempts have been made to contact [F]ather but
they have been unsuccessful. FCM Ammann has been in contact
with his family and they indicated that he is currently homeless
and rarely holds employment.
Appellant’s App., Vol. II at 8.
[4] The juvenile court conducted an initial detention hearing on October 11
wherein Mother admitted to the allegations in the CHINS petition and the
juvenile court adjudicated Child to be a CHINS. See id. at 11. The juvenile
court determined that the removal of Child was authorized and necessary to
protect Child. Following a dispositional hearing on November 6, the juvenile
court imposed twenty-nine conditions upon Mother with the goal of
reunification. See id. at 14-16.
[5] The juvenile court conducted a review hearing on April 2, 2018. Following the
hearing, the juvenile court found, in relevant part:
[Father] and [Mother] have not complied with the [C]hild’s case
plan. [M]other has been non-compliant with service providers
and does not maintain contact with DCS. . . .
[Father] and [Mother] have not enhanced their ability to fulfill
their parental obligations. [M]other has been non-compliant with
services. . . .
[Father] and [Mother] have not visited the [C]hild. [M]other has
only participated in 9.25 hours of the offered 55 hours of
visitation with the [C]hild.
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[Father] and [Mother] have not cooperated with DCS.
Id. at 20.
[6] A permanency hearing was conducted on May 14. The juvenile court found
that Mother had not complied with Child’s case plan, failed to submit to regular
random drug screens or participate in ordered services, and remained
unemployed without housing for the children. See id. at 22. The juvenile court
changed Child’s permanency plan “to be placed for adoption.” Id. at 23.
[7] DCS filed its petition for the involuntary termination of the parent-child
relationship on May 17, 2018. The juvenile court held a factfinding hearing on
July 11 and, after hearing the evidence, terminated Mother’s parental rights
through written findings of fact and conclusions of law issued on July 13. The
juvenile court found, in relevant part:
There is a reasonable probability that the conditions that resulted in the
[C]hild’s removal or the reasons for the placement outside the parent’s
home will not be remedied in that:
a. Mother continued to test positive for illegal drugs throughout
the CHINS case including THC and cocaine. Mother also tested
positive for THC while currently pregnant.
***
c. Mother only met with her homemaker services worker once
and had several no-call, no-shows to appointments. Mother still
does not have appropriate housing and is still not employed.
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d. Mother’s first therapist was never able to start individual
therapy over a two month period due to difficulty contacting
[M]other despite calling, texting, and making visits to the home.
***
g. Mother was inconsistent with visitation, [M]other only
attended five out of thirty-nine visitations, the last being in
January of 2018.
h. Mother did not attend any counseling sessions after her initial
intake and she failed to attend any intensive outpatient treatment
sessions.
***
j. DCS tried to offer services through an Informal Adjustment but
[M]other was arrested in Newton County for drug-related
charges in October 2017.
k. That [M]other reported several different addresses in Illinois
and Northwest Indiana during the CHINS case and was not in
contact with DCS. DCS attempted to mail [M]other contact
information in 2018 but was not successful.
***
m. Mother did not contact DCS from December 21, 2017, until
March 18, 2018, except for at court appearances.
n. In March 2018 [M]other informed DCS by text that she was
homeless, and paperwork could be sent to an address in East
Chicago.
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o. Mother admitted she continued to use drugs because her
children were taken away and it was hard.
p. Mother never asked DCS to move services closer to her when
she lived in East Chicago.
q. Mother [sic] relationship with the man she was living with
after removal involved daily fighting where [M]other would leave
and then return.
There is a reasonable probability that continuation of the parent-child
relationship poses a threat to the well-being of the [C]hild in that:
a. Mother only met with her homemaker service provider to find
housing and employment once and then no-called or no-showed
the remainder of the appointments.
b. Mother’s first therapist had great difficulty contacting [M]other
despite numerous calls, texts, and visits to the home over a two
month [sic] period and [M]other never began individual therapy.
***
e. That [M]other was inconsistent with visitation and only
attended five out of thirty-nine visitations, the last of which was
in January of 2018.
f. Mother never attended individual therapy or intensive
outpatient drug treatment after the initial intake appointment.
***
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h. Mother admitted she continued to use drugs because her
children were taken away and it was hard.
***
Termination is in the [C]hild’s best interests of the [C]hild [sic] in that:
***
d. Mother continues to maintain a lifestyle that necessitated the
informal adjustment and then removal in 2017.
e. Mother who is currently pregnant, still continues to use illegal
drugs.
f. Mother did not participate in any of the mental health services
that were provided.
g. Mother does not have a stable residence and has lived with
various people with no home of her own.
h. Mother’s rate of attendance to as to [sic] visits is less than
twenty percent.
i. Mother is not ready to address her problems as she testified it
was all the other people around her in her life causing the
problems.
Id. at 29-31 (emphasis added). Mother now appeals.
Discussion and Decision
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I. Standard of Review
[8] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge the credibility of witnesses. In re D.D., 804 N.E.2d 258, 265
(Ind. Ct. App. 2004), trans. denied. Rather, we consider the evidence, and
reasonable inferences therefrom, most favorable to the judgment, id., and we
will only set aside the court’s judgment terminating a parent-child relationship
when it is clearly erroneous, In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.
1999), trans. denied, cert. denied, 534 U.S. 1161 (2002).
[9] As required by Indiana Code section 31-35-2-8(c), the juvenile court entered
findings of fact and conclusions thereon when terminating Mother’s parental
rights. Accordingly, we apply a two-tiered standard of review. Bester v. Lake Co.
OFC, 839 N.E.2d 143, 147 (Ind. 2005). We must first determine whether the
evidence supports the findings; then we determine whether the findings support
the judgment. Id. Findings will only be set aside if they are clearly erroneous
and findings are clearly erroneous only “when the record contains no facts to
support them either directly or by inference.” Yanoff v. Muncy, 688 N.E.2d
1259, 1262 (Ind. 1997).
II. Termination Order
[10] Mother challenges the termination of her parental rights to Child. A parent’s
interest in the care, custody, and control of his or her child is “perhaps the
oldest of the fundamental liberty interests[,]” Bester, 839 N.E.2d at 147, and
these rights are protected by the Fourteenth Amendment to the United States
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Constitution, In re D.D., 804 N.E.2d at 264. Although these rights are
constitutionally protected, they are not without limitation and the law provides
for the termination of the parent-child relationship when parents are unable or
unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144,
149 (Ind. Ct. App. 2008).
[11] To terminate Mother’s parental rights, Indiana Code section 31-35-2-4(b)(2)
requires DCS prove, in relevant part:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of
the child.
DCS must prove the foregoing elements by clear and convincing evidence. Ind.
Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). However,
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because subsection (b)(2)(B) is written in the disjunctive the juvenile court need
only find one of the three elements by clear and convincing evidence. See Castro
v. State Office of Family & Children, 842 N.E.2d 367, 373 (Ind. Ct. App. 2006)
(citation omitted), trans. denied.
[12] Mother challenges the juvenile court’s conclusions that the conditions under
which Child was removed would not be remedied, the continuation of the
parent-child relationship posed a risk to Child, and termination was in the best
interests of Child. Before proceeding to the merits of Mother’s argument,
however, we note that Mother does not specifically challenge any of the
findings of fact and therefore we accept the juvenile court’s findings as true. See
Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).
A. Remedy of Conditions
[13] First, Mother argues DCS failed to prove by clear and convincing evidence that
the conditions resulting in Child’s removal will not be remedied. In K.T.K. v.
Ind. Dep’t of Child Servs., our supreme court explained:
We engage in a two-step analysis to determine whether the
conditions that led to the [Child’s] placement outside the home
will not be remedied. First, we must ascertain what conditions
led to [the] placement and retention in foster care. Second, we
determine whether there is a reasonable probability that those
conditions will not be remedied. In making these decisions, the
trial court must consider a parent’s habitual pattern of conduct to
determine whether there is a substantial probability of future
neglect or deprivation.
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989 N.E.2d 1225, 1231 (Ind. 2013) (quotations and citations omitted). Habitual
conduct may include criminal history, drug and alcohol abuse, history of
neglect, failure to provide support, and lack of adequate housing and
employment, but the services offered to the parent and the parent’s response to
those services can also be evidence demonstrating that conditions will be
remedied. A.D.S v. Indiana Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct.
App. 2013), trans. denied.
[14] Since Mother has failed to specifically challenge any of the juvenile court’s
findings, we need only consider whether the findings support the juvenile
court’s conclusion. See Bester, 839 N.E.2d at 147. Here, Mother wholly failed
to demonstrate that she was any closer to providing Child a safe, stable home
than she was at the inception of the CHINS case. The record is littered with
evidence of Mother’s failure to engage with DCS, her refusal to participate in
services, and her inability to combat her substance abuse issues. Indeed, FCM
Ammann testified Mother made no progress regarding her substance abuse. See
Tr. at 47. The juvenile court made extensive findings on this issue and we
conclude those findings support its conclusion that the conditions resulting in
Child’s removal will not be remedied. See, e.g., In re E.M., 4 N.E.3d 636, 644
(Ind. 2014) (findings regarding father’s continued non-compliance with services
supported juvenile court’s conclusion the conditions under which children were
removed from father’s care would not be remedied).
[15] To the extent Mother argues that she recently attempted to engage in services,
the juvenile court was well within its discretion to “disregard the efforts Mother
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made only shortly before termination and to weigh more heavily Mother’s
history of conduct prior to those efforts.” In re K.T.K., 989 N.E.2d at 1234.
And, to the extent Mother cites her own testimony as evidence that her failure
to comply with services was outside of her control, we view her argument as
nothing more than an invitation to reweigh the evidence, which we will not do.
See In re D.D., 804 N.E.2d at 265.
B. Well-Being of Child
[16] Next, Mother contends DCS failed to present clear and convincing evidence
that the continuation of the parent-child relationship poses a threat to Child’s
well-being. Having already concluded the juvenile court did not err in
concluding that the conditions that led to Child’s removal would not be
remedied, we need not address this argument. See Castro, 842 N.E.2d at 373(noting that Indiana Code 31-35-2-4(b)(2)(B) is written in the disjunctive and
the juvenile court need only find one of the three elements by clear and
convincing evidence). However, given the juvenile court’s unchallenged
findings in this regard, Mother’s continued substance abuse issues, and
Mother’s lack of effort or success in overcoming those substance abuse issues,
we nevertheless conclude the juvenile court did not err in concluding there was
a reasonable probability that the continuation of the parent-child relationship
poses a threat to Child’s well-being. See In re D.L., 814 N.E.2d 1022, 1029 (Ind.
Ct. App. 2004) (“The inevitable conclusion is that when [mother] abuses drugs,
she endangers her children in a variety of ways.”), trans denied.
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C. Best Interests of Child
[17] Finally, Mother argues the juvenile court erred in concluding that the
termination of the parent-child relationship was in the best interests of Child.
[18] In determining what is in the best interests of a child, the juvenile court is
required “to look beyond the factors identified by [DCS] and to consider the
totality of the evidence.” In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).
In so doing, the court must subordinate the interests of the parents to those of
the children. In re A.K., 755 N.E.2d 1090, 1097 (Ind. Ct. App. 2001). The court
need not wait until a child is irreversibly harmed before terminating the parent-
child relationship. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d
185, 199 (Ind. Ct. App. 2003). Moreover, the testimony of service providers
may support a finding that termination is in the child’s best interests. Id. at 203.
[19] Once again, Mother has failed to challenge any of the juvenile court’s findings
of fact on this issue and thus we need only determine whether those findings
support the juvenile court’s conclusion. We conclude that they do. In addition
to Mother’s substance abuse issues that necessitated DCS involvement and her
complete lack of progress since then, FCM Ammann testified that terminating
Mother’s parental rights would serve the best interests of Child. See Tr. at 53.
Therefore, we conclude Mother has failed to demonstrate the juvenile court’s
conclusion regarding the best interests of Child was clearly erroneous.
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Conclusion
[20] For the reasons set forth above, we conclude the juvenile court’s decision to
terminate Mother’s parental rights was not clearly erroneous. We affirm
accordingly.
[21] Affirmed.
Riley, J., and Kirsch, J., concur.
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